WASHINGTON -- The Supreme Court on Wednesday appeared to line up, more or less, against a man arguing that Secret Service agents violated his First Amendment rights when they arrested him after he touched Vice President Dick Cheney's shoulder during a 2006 visit to a Colorado mall.
Steven Howards was taking his son to a piano lesson at the mall when he saw Cheney. One of Cheney's Secret Service agents overheard Howards, who was talking on his cellphone, say that he was going to ask the vice president "how many kids he's killed today." Soon thereafter, Howards approached Cheney, told him that his "policies in Iraq are disgusting," touched Cheney on the shoulder and then walked away.
Agent Gus Reichle, Cheney's protective intelligence coordinator, followed Howards, who angered Reichle by refusing to answer his questions. After a spirited exchange, in which Howards falsely denied touching Cheney, Reichle arrested Howards for assault and took him to the local sheriff's office, where his wife posted a $500 bond for his release.
After the state dropped the charges, Howards sued Reichle and another agent for allegedly arresting him in retaliation for his anti-war comments, violating his First Amendment right to free speech.
Reichle's lawyer, Sean Gallagher, told the justices on Wednesday morning that Secret Service agents who have probable cause to make an arrest should not be subject to claims of First Amendment retaliation. The threat of such suits, he said, would compromise the agents' ability to "make decisions in life-or-death or imminent-threat situations."
Justice Ruth Bader Ginsburg noted that the reason provided in this case for probable cause to arrest -- Howards' violation of a federal law against making false statements to a government officer -- was not the actual reason for arrest at the time.
"There was a question of assaulting the vice president, and I think that the charge that eventually was made in the state court was harassment," Ginsburg said. "So there is no indication that these officers had [the federal false statements law] anywhere in their minds."
But the Supreme Court's probable cause precedents are not so picky. "So long as they have good reason for an arrest, it doesn't matter," said Justice Antonin Scalia.
That is what made some justices nervous about accepting Gallagher's broadest arguments for Secret Service immunity.
"You make a very strong case where the president and vice president are involved, the need to protect them," Justice Stephen Breyer said. "But the rule that you there adopt is a rule that will apply to every police officer, anyone who arrests anyone anywhere in the country, and no matter how clear it is that the motive was retaliation against a point of view, that individual will be protected" from a retaliation suit.
Justice Sonia Sotomayor shared Breyer's worry. "[P]olicemen don't arrest you for jaywalking unless they are either on a
ticket binge or because there's something about you that they don't like," she said. "So if that something about you they don't like is that you are wearing an anti-war armband, are we going to let that plaintiff not recover because somehow we need to protect police officers so much, in the discretionary use of this vast power they have to arrest, that we are going to permit them to trample the First Amendment, essentially?"
Gallagher sought to mollify the skeptical justices by reiterating that he was seeking a narrow decision. "Secret Service agents [are] unlike police officers providing law enforcement functions," he said. "When Secret Service are acting in a protective capacity, they are protecting our nation's leaders and they are doing so in a very public way, and they are also doing so in a way that is essentially a free speech zone."
"This case aptly demonstrates the situation in which Secret Service agents made very difficult decisions on the spot, and they should not be second-guessed by the Court," Gallagher concluded.
Nevertheless, Principal Deputy Solicitor General Sri Srinivasan, arguing on behalf of the Obama administration in support of the Secret Service agents, told the justices that "it also makes sense to apply [officer immunity] in other situations, because law enforcement can legitimately take into account expressive activity when they are engaged in functions such as crowd control."
An across-the-board ban on First Amendment retaliation claims is justified, Srinivasan contended, because "it's extremely difficult to disentangle a legitimate desire to act to suppress danger, of which speech is evidence, from an illegitimate desire to suppress a viewpoint."
Howards' lawyer, David Lane, called the Secret Service agents' case a solution in search of a problem, citing "one Secret Service case in its entire history, and there are 15 appellate reported federal decisions regarding retaliatory arrests."
That did not stop Chief Justice John Roberts from noting his own concern with Lane's framing the case as his client's fight to vindicate his free speech rights.
"So what you have under your theory, a person should put on his car a bumper sticker that says, 'I hate the police,' and every time they are pulled over, they will have certainly a plausible case," the chief justice said. The person could say to the officer, "You violated my First Amendment rights. It's not because I was going 60 miles an hour, it's because of my bumper sticker," Roberts continued.
Justice Sotomayor then sought to scale back the scope of her colleagues' argument, asking Lane how they can draw a line that "doesn't enmesh the police in a constant barrage of claims that just because they angered a police officer, that's why they were arrested."
Lane's answer was simple: "There has not been this constant barrage."
Justice Samuel Alito followed up, pushing aside the small number of cases that Lane cited. "Would you acknowledge that the Secret Service faces a different situation from ordinary police officers in conducting their daily activities, in that Secret Service agents may legitimately take into account First Amendment activity by someone who is in the vicinity of the president or the vice president in assessing the degree of danger the person presents?" he asked.
Lane conceded that they could. But he was unwilling to concede that his client's ability to bring a suit would hamstring the agency.
"The Secret Service has adequately done their jobs beautifully for over a century," he said. "And there is no reason to put some different rule down" now to prevent men like Howards from vindicating their constitutional claims.
"Well, we've lost a couple of presidents," Scalia said.
This is not the first time Vice President Cheney has figured in a Supreme Court case. In 2004, Scalia issued a 21-page memorandum explaining why a duck-hunting foray with Cheney did not require the justice's recusal from a case to which Cheney was a party.
Justice Elena Kagan is not participating in Reichle v. Howards, likely due to her involvement with the case when she served as solicitor general. A decision in the case is expected by the end of June.